The Volokh Conspiracy
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More on Birthright Citizenship and Undocumented Immigrants - Rejoinder to Barnett and Wurman
Why their response to me and other critics fails to refute key objections.
In a recent blog post, Randy Barnett and Ilan Wurman have responded to my piece and others criticizing their NY Times op ed that had offered partial defense of President Trump's executive order denying birthright citizenship to children of undocumented immigrants, and migrants in the US on temporary visas. I think they fail to effectively rebut several key points, most notably that their argument - if applied consistently - would also deny birthright citizenship to recently freed slaves - the group the Citizenship Clause of the Fourteenth Amendment was principally intended to protect.
Section 1 of the Amendment grants citizenship to anyone "born … in the United States and subject to the jurisdiction thereof." Barnett and Wurman argue that only people who have exchanged "allegiance" for "protection" qualify as "subject to the jurisdiction" of the US. As pointed out in my earlier post, freed slaves did not qualify, because they had never made any such exchange. The US government sought to compel their obedience, but did not offer any meaningful protection. To the contrary, it facilitated their subjugation and oppression.
In their response, Barnett and Wurman state that " enslaved persons brought here against their will were not afforded protection of the law. But obedience and ligeance were demanded of them nonetheless." The US, they say, owed them protection in exchange. The obvious problem here is that a demand for obedience without any reciprocal provision of protection is not an "allegiance-for-protection" compact. It's just straight-out coercion in exchange for virtually nothing. One could just as easily say that a Mafia protection racket qualifies as "allegiance-for-protection." Indeed, the slavery situation was actually worse than that, since the Mafia usually doesn't impose lifelong forced labor on its victims.
If a mere demand of obedience is enough to trigger "jurisdiction," then illegal migrants also qualify. After all, the US government certainly demands their obedience to its laws. They can be prosecuted for crimes, subjected to civil suits in US courts, and so on.
At one point, if I interpret them correctly, Barnett and Wurman seem to suggest that the allegiance-for-protection exchange may have occurred when the former slaves were freed. I anticipated this kind of argument in my previous post:
This situation changed, to an extent, with the abolition of slavery through the Thirteenth Amendment. But the "subject to the jurisdiction" language of the Citizenship Clause refers to people subject to that jurisdiction at the time they were born. For example, the [US-born] child of a foreign diplomat doesn't get birthright citizenship if her parents later lose their diplomatic immunity.
By its very nature, birthright citizenship is acquired through circumstances present at the time of one's birth, not by ones that occur years later.
Barnett and Wurman also continue to err in focusing almost exclusively on materials that predate the drafting and enactment of the Fourteenth Amendment. Given that the whole purpose of the Citizenship Clause was to grant citizenship to a large class of people who didn't have it before, we cannot assume that it was merely following preexisting legal rules (even assuming that Barnett and Wurman interpret the latter correctly). Scholars who have canvassed the drafting and enactment history, and its aftermath find that the evidence supports birthright citizenship for the undocumented. See, for example, Michael Ramsey's extensive work on this subject.
The source Barnett and Wurman rely on the most is an 1862 opinion by Attorney General Edward Bates. Even assuming this opinion is relevant to the construction of the Citizenship Clause (drafted years later), Barnett and Wurman fail to effectively address Jed Shugerman's critique of their construction of it. As Shugerman points out, far from concluding that an allegiance-for-protection exchange is necessary to trigger birthright citizenship, Bates argued the exact opposite: being born in the United States creates a presumption of citizenship, which in turn triggers both allegiance and protection. As Bates put it, "nativity furnishes the rule, both of duty and of right, as between the individual and the government" (emphasis added).
Barnett and Wurman overlook this crucial point in both their original article and their response. I am not convinced the Bates opinion should be given any great weight in interpreting the Citizenship Clause. As a legal matter, it is not actually an interpretation of the Citizenship Clause, which had not yet been drafted. As a matter of political theory, I find the argument that mere birth triggers an obligation of allegiance morally repugnant. But to the extent that Bates' position matters, it actually undercuts the Barnett-Wurman thesis rather than supports it.
Finally, Barnett and Wurman continue to claim that their opponents' position cannot account for such anomalies as the denial of birthright citizenship to people born on foreign public vessels in US waters and its extension to children of American citizens born in territories occupied by an invading army. I covered both in my original post:
These aren't actually anomalies at all. As the Supreme Court ruled in 1812, foreign public vessels in US territorial waters remain under the sovereignty of their governments, and therefore are not within US jurisdiction. Citizens residing within enemy-held territory remain under an obligation to follow US law, and that duty can be enforced upon them in a way it cannot be on foreign troops (for example through prosecutions undertaken after the US recaptures the territory).
I would add that the US government retains a variety of other means of leverage over US citizens residing in temporarily occupied territories. For example, it can strip them of citizenship if they commit treason by collaborating with the enemy. Such people remain under US jurisdiction in a way invading enemy troops are not.
Finally, I think Barnett and Wurman are wrong to suggest that the phrase "subject to the jurisdiction" is ambiguous with respect to the issue at hand. In both ordinary usage and legal parlance, "jurisdiction" refers to authority. A person is subject to the jurisdiction of a government if that entity can exercise power over her by enforcing its laws against her. There may be some situations where the term is used in a non-standard or counterintuitive way. But if so, the burden of proof is on those who advocate an interpretation that deviates from ordinary usage.
In sum, I much appreciate Barnett and Wurman's thoughtful efforts to address criticisms and clarify their position. But the ultimate result does more to highlight the power of the critiques than to refute them.
UPDATE: It may be worth reiterating, as stated in my earlier post, that the Barnett-Wurman argument - even if completely sound - cannot justify the part of Trump's order denying birthright citizenship to children of migrants who legally entered the US on temporary visas.
